A sharply divided 3-judge panel of the Fourth Circuit ruled last week in a pair of cases that a group of Iraqi citizens could not sue U.S. military contractors in tort for torture in Abu Ghraib prison and other locations throughout Iraq.

The court ruled in Al Shimari v. CACI Int'l and Al Quraishi v. L-3 Services, Inc. that federal interests preempted the plaintiffs' claims and dismissed the cases. But there was no preempting federal statute; instead the court relied on federal "interests" in interrogating detainees on a battlefield. Judge Niemeyer explained in an opinion joined by Judge Shedd:

[W]e too conclude that this case implicates important and uniquely federal interests. The potential liability under state law of military contractors for actions taken in connection with U.S. military operations overseas would similarly affect the availability and costs of using contract workers in conjunction with military operations. In this case, that uniquely federal interest was especially important in view of the recognized shortage of military personnel and the need for assistance in interrogating detainees at Abu Ghraib prison. Not only would potential tort liability against such contractors affect military costs and efficiencies and contractors' availability, it would also present the possibility that military commanders could be hauled into civilian courts for the purpose of evaluating and differentiating between military and contractor decisions. That effort could become extensive if contractor employees and the military worked side by side in questioning detainees under military control, as the complaint alleges in this case. Moreover, such interference with uniquely federal interests would be aggravated by the prison's location within the war zone. Finally, potential liability under state tort law would undermine the flexibility that military necessity requires in determining the methods for gathering intelligence.

. . .

In addition to the specific adverse impacts on the uniquely federal interests of interrogating detainees in foreign battlefields, a broader and perhaps more significant conflict with federal interests would arise from allowing tort law generally to apply to foreign battlefields.

Al Shimari at 8-10. In ruling the plaintiffs' claims preempted, the court followed the lead of the D.C. Circuit in Saleh v. Titan Corp., a 2009 case holding that where a civilian contractor is integrated into combat activities over which the military maintains authority, tort claims against the contractor are preempted.

Judge Neimeyer wrote separately to say that he would have dismissed the case under the political question doctrine and derivative absolute immunity, too.

Judge King wrote a lengthy dissent. Judge King said that the court lacked jurisdiction over this interlocutory appeal, a position he explains in his dissenting opinion in Al Quraishi, and that, if the court had jurisdiction, preemption didn't apply to bar the plaintiffs' claims.

In Al Quraishi, a case with similar facts, the divided panel (Judge King, dissenting) ruled that the court had jurisdiction over the contractor's interlocutory appeal of the district court's denial of its motion to dismiss.

Castle Rock v. Gonzales, decided by the United States Supreme Court in 2005, stands for the proposition that one does not have a due process right to have a restraining order enforced by law enforcement. In Castle Rock, Ms. Jessica Gonzalez had a restraining order against her husband, but despite the fact that he took their three children without permission and she contacted the police department three times and was essentially told to call back later each time, and Mr. Gonzalez murdered all three children without any police action, the Court found that she did not have any due process rights to have the order enforced.

Confronted with a case such as Castle Rock, students may ask whether there is anything else Ms. Gonzalez could do. The usual answer for ConLawProfs would be no, given that the nation's highest court has rendered its opinion. However, Ms. Gonzalez, now known as Jessica Lenahan, represented by American law professors and students at University of Miami's Human Rights Clinic took her case to an international forum - - - the Inter-American Commission on Human Rights.

The Commission has just made public its lengthy Report on the matter, finding that the restraining order was the only means available to Jessica Lenahan at the state level to protect herself and her children in a context ofdomestic violence, and the police did not effectively enforce it. The Commission concluded that these failures to protect Lenahan and her daughters constituted a form of discrimination in violation of the American Declaration, since they took place in a context where there has been a historical problem with the enforcement of protection orders; a problem that has disproportionately affected women sincethey constitute the majority of the restraining order holders.

The constitutional effect of such rulings and "urgings" may be limited, but the interrelationship between domestic constitutional law and international human rights is worth surfacing in ConLaw classes.

A three-judge panel of the Sixth Circuit ruled Tuesday that a conviction against an Airborne infantryman under the Military Extraterritorial Jurisdiction Act did not violate separation of powers. The conviction stands.

The case, U.S. v. Green, arises out of a gruesome and horrific multiple rape and multiple murder of Iraqi civilians committed by Green and two colleagues in Iraq. The Army charged Green's colleagues under the UCMJ, but the Army discharged Green (for a personality disorder). The government then charged and convicted him using the MEJA, a law that permits the government to prosecute former members of the military in Article III courts for crimes committed overseas while they were in the military. (The MEJA thus closes a loophole for former military who commit crimes overseas: They can't be charged under the UCMJ, but they can't be charged under U.S. criminal law, either; MEJA allows the government to prosecute. You might ask why the Iraqi authorities couldn't charge Green: Because Paul Bremer's Coalition Provisional Authority Order Number 17 says that coalition forces "shall be immune from the Iraqi legal process.")

Green argued that his conviction was unconstitutional, because MEJA violated the separation of powers and the nondelegation doctrine (among other things). The Sixth Circuit disagreed. It said that MEJA certainly expanded executive branch power, but not at the expense of any other branch. MEJA is no different than, say, any new criminal law that Congress might enact.

The ruling is utterly unremarkable and unsurprising. But the government's position contrasts starkly with its position in the Seventh Circuit's recent decision in Vance v. Rumsfeld. In Vance, the Seventh Circuit ruled that a Bivens claim for overseas torture by U.S. citizens against Donald Rumsfeld can move forward, despite the government's vigorous arguments that separation-of-powers considerations prohibit a Bivens remedy, because courts have no business poking their noses around issues of national security, foreign policy, war-making, and the like. As the Seventh Circuit noted, the government's extreme position in that case would also mean that someone like Green couldn't be on the receiving end of a Bivens claim (even if his victims were U.S. citizens).

The separation-of-powers concern in Vance, of course, was different than in Green. The government argued in Vance that the courts' involvement in such matters intruded upon executive authority. The government had no such concern in Green, apparently: It ran to the courts, using MEJA, to prosecute Green, not at all worried that such a prosecution would inappropriately mire the courts in national security concerns (as in Vance). A double standard? You decide. But it does seem that the government would have a hard time squaring its prosecution of Green with its position in Vance.

A divided three-judge panel of the Seventh Circuit ruled on Monday in Vance v. Rumsfeld that a Bivens suit by two Americans alleging that former Secretary of Defense Donald Rumsfeld authorized their torture can move forward.

If the case sounds familiar, that's because it is: Just last week, Judge Gwin (D.D.C.) ruled in Doe v. Rumsfeld that a nearly identical suit can move forward. (The plaintiffs in the suits alleged similar torture at the same site, Camp Cropper, the U.S. military prison in Iraq.) The key difference between these cases and the D.C. Circuit's rejection of a torture claim against Rumsfeld in June: The plaintiffs here are U.S. citizens; the plaintiffs in the D.C. Circuit case, Arkan v. Rumsfeld, were aliens. (The D.C. Circuit ruled that it wasn't clearly established in 2004, the time of the actions there, that the Fifth and Eighth Amendments applied to aliens detained abroad; Rumsfeld thus had qualified immunity.)

Judge Hamilton's opinion in Vance, joined by Judge Evans, tracked Judge Gwin's reasoning, but with over 80 pages of detail. The meaty opinion seems carefully tailored to withstand any appeal.

In short, the court ruled that the plaintiffs sufficiently pleaded their allegations that Secretary Rumsfeld authorized treatment that violated the Fifth Amendment's Due Process Clause (substantive due process)--and that he reasonably should have known it. The court thus ruled that the plaintiffs pleaded facts sufficient to satisfy the pleading standard in Ashcroft v. Iqbal and that Rumsfeld did not qualify for immunity. The court also ruled that there was no reasonable alternative way for the plaintiffs to bring their claims and that there were no special factors counselling against a Bivens remedy. In particular, the court rejected the defendants' separation-of-powers arguments--like those in Doe--that courts don't have any business in cases dealing with national security and foreign affairs, especially in times of war. Here's a flavor of what the court said on that point:

The unprecedented breadth of defendants' argument should not be overlooked. The defendants contend that a Bivens remedy should not be available to U.S. citizens for any constitutional wrong, including torture and even cold-blooded murder, if the wrong occurs in a war zone. The defendants' theory would apply to any soldier or federal official, from the very top of the chain of command to the very bottom. We disagree and conclude that the plaintiffs may proceed with their Bivens claims.

Op. at 43.

Judge Minion wrote in dissent that the court improperly extended Bivens to this case--a case in which "United States citizens alleg[ed] torture while held in an American military prison in an active war zone." Op. at 81.

This makes two cases in two weeks--one district court, one circuit court--allowing very similar torture suits to move forward against Rumsfeld. We'll watch for appeals.

Judge James S. Gwin (D.D.C.) ruled this week in Doe v. Rumsfeld that a U.S. citizen's Bivens suit against former Secretary of Defense Donald Rumsfeld can move forward beyond the pleadings. In so ruling, Judge Gwin also flatly rejected some of the kinds of claims we've grown accustomed to by the government in cases arising out of its anti-terrorism programs--most especially a separation-of-powers claim that the courts have no business poking their noses in foreign affairs and national security.

The ruling comes on Rumsfeld's motion to dismiss the plaintiff's complaint. The plaintiff, a U.S. citizen and civilian employee once deployed with a Marine intelligence unit in Iraq, alleged that Rumsfeld authorized his torture at overseas prisons operated by the United States and denied him fair process to challenge his designation and detention. He brought a Bivens claim for violations of substantive due process, procedural due process, and access to the courts and sought monetary damages.

Rumsfeld argued that the plaintiff's claim amounted to an unwarranted expansion of Bivens--that Bivens did not contemplate this kind of monetary damages claim, and that special factors counseled against recognizing the plaintiff's Bivens claim here--in particular, the separation-of-powers argument that this case raised foreign affairs, national security, and war-time issues uniquely within the bailiwick of the political branches, and that the courts have no expertise in these areas.

The court disagreed. Judge Gwin cited the Supreme Court's relatively recent and not-so-recent forays into foreign affairs, national security, and war-time issues--cases in which the government made arguments very similar to those Rumsfeld made here--and ruled that courts do, in fact, sometimes get involved in these issues. Moreover, Judge Gwin noted that the plaintiff was detained on his way out of Iraq, after he left the field of battle, when he could no longer offer low-level aid to insurgents (as the government alleged). Judge Gwin also rejected Rusmfeld's related "real world consequences" of allowing a Bivens remedy here, that the threat of liability would impede military decisionmaking; that proceeding with the case would involve sensitive information, distracting discovery, and testimony by soldiers that would disrupt the military's efforts; and that the action would "embroil the judiciary in war-related decisions" that are complicated to litigate.

Judge Gwin also rejected Rumsfeld's qualified immunity defense. Judge Gwin wrote that the plaintiff pleaded sufficient facts to show that Rumsfeld approved of policies that led to his torture, in violation of substantive due process. (He was careful to write that this was not a respondeat superior claim in violation of Ashcroft v. Iqbal. Instead, it was a direct claim for authorizing torture.) But Judge Gwin wrote that the plaintiff did not plead sufficient facts to show that Rumsfeld directed his shoddy process in violation of procedural due process and the right of access to the judiciary. He thus dismissed these two claims.

The ruling means that the plaintiff jumped one of his most significant hurdles--getting past the pleadings on his torture claim against Rumsfeld--especially after the Supreme Court clarified the high pleading standard in Iqbal and especially given a very recent ruling by the D.C. Circuit in a very similar case. Just over a month ago, the D.C. Circuit dismissed a Bivens claim against Rumsfeld for tortureby an alien detained overseas. Key to the D.C. Circuit's ruling in Arkan v. Rumsfeld was that it wasn't clearly established at the time that the Fifth and Eighth Amendments applied to aliens detained abroad (not our case). But maybe just as key--and more relevant to Doe--the court ruled that prudential considerations--that cases like this against military officials would disrupt the war effort, just like Rumsfeld's argument in Doe--counselled against extending a Bivens remedy.

If the D.C. Circuit applies this same prudential considerations analysis to Doe, this case won't go far.

A Vietnamese appeals court earlier this week upheld the conviction and seven-year sentence of attorney and scholar Cu Huy Ha Vu for propagandizing against the Vietnamese government. Human Rights Watch has a report and case materials here.

According to the indictment, Vu called for the elimination of the leading role of the Vietnamese Communist Party, the removal of Article 4 of the Constitution (discussed below), and a multi-party, plural political system. Here's a sample of what the government claimed Vu said:

In short, to maintain the leadership of the Vietnamese Communist Party over the country is nothing other than serving the illegal interests of a small group inside the Vietnamese Communist Party, which goes against the interests of the majority of the people, including millions of Communist Party members, and therefore should not be prolonged any further. By the way, I am once again beckoning the leaders of the Vietnamese Communist Party to promptly apply a multi-party system in Vietnam, otherwise, national integration and national conciliation will become national deception, with its foreseeable negative consequences.

The Communist Party of Vietnam, the vanguard of the Vietnamese working class, the faithful representative of the rights and interests of the working class, the toiling people, and the whole nation, acting upon the Marxist-Leninist doctrine and Ho Chi Minh's thought, is the force leading the State and society.

All Party organisations operate within the framework of the Constitution and the law.

Vietnam, of course, isn't alone in its one-party approach. But it's in dwindling company--just a handful of constitutions today still codify one-party rule (even if more have de facto one-party rule). Here's a sample, from Cuba:

The Communist Party of Cuba, a follower of Marti's ideas and of Marxism-Leninism, and the organized vanguard of the Cuban nation, is the highest leading force of society and of the state, which organizes and guides the common effort toward the goals of the construction of socialism and the progress toward a communist society.

The rights of the multi-ethnic people to be masters of the country are exercised and ensured through the functioning of the political system with the Lao People's Revolutionary Party as its leading nucleus.

Article 50: In the Socialist Republic of Vietnam human rights in the political, civic, economic, cultural and social fields are respected. They are embodied in the citizen's rights and are determined by the Constitution and the law.

Article 51: The State guarantees the rights of the citizen; the citizen must fulfill his duties to the State and society.

Article 53: The citizen has the right to participate in the administration of the State and management of society, the dicussion of problems of the country and the region; he can send petitions to State organs and vote in referendums organised by the State.

Article 70: The citizen shall enjoy freedom of opinion and speech, freedom of the press, the right to be informed, and the right to assemble, form associations and hold demonstrations in accordance with the provisions of the law.

Article 76: The citizen must show loyalty to his motherland. To betray one's motherland is the most serious crime.

The Republic of Southern Sudan has been operating under an interim constitution since the comprehensive peace agreement with Sudan. The government formed a constitutional review committee chaired by Minister of Legal Affairs and Constitutional Development John Luk Jok to review and revise the interim constitution.

King Mohammed VI proposed the "comprehensive constitutional reform" in reaction to the protests there that began on February 20--Morocco's version of the Arab Spring protests sweeping the Middle East and North Africa. According to reports, the changes are designed to shift power away from the King and toward the Prime Minister and Parliament, ensure an independent judiciary, and make Berber an official language alongside Arabic. (We'll post the text of the new Constitution as soon as we can track it down.)

But despite the seemingly overwhelming approval, there are strong dissenting voices. The changes have been criticized for not going far enough, and the process has been critized for stifling debate.

Koh relied on the administration's understanding at the time of enactment of the WPR and subsequent practice to make his case:

In this case, leaders of the current Congress have stressed this very concern in indicating that they do not believe that U.S. military operations in Libya amount to the kind of "hostilities" envisioned by the War Powers Resolution's 60-day pullout provision. The historical practice supports this view. In 1975, Congress expressly invited the Executive Branch to provide its best understanding of the term "hostilities." My predecessor Monroe Leigh and Defense Department General Counsel Martin Hoffmann responded that, as a general matter, the Executive Branch understands the term "to mean a situation in which units of the U.S. armed forces are actively engaged in exchanges of fire with opposing units of hostile forces." . . . In the third-six years since Leigh and Hoffmann provided their analysis, the Executive Branch has repeatedly articulated and applied these foundational understandings.

Testimony, at 6-7. Koh went on to argue that the mission is limited, the exposure of U.S. armed forces is limited, the risk of escalation is limited, and military means are limited. Together, these mean that the operations are not "hostilities" under the WPR, and the President isn't violating the pull-out provision by failing to gain congressional approval and yet continuing the engagement.

Koh urged the Senate to adopt Senate Joint Resolution 20, the Kerry-McCain bill authorizing limited use of U.S. forces in Libya, but only so that the U.S. Government could show a united front--and not because it's constitutionally necessary.

Fisher responded point-by-point to the administration's claims (or "doubletalk") throughout the Libyan debates, including the OLC's conclusion that the operations are not a "war" under the Declaration of War Clause and the administration's conclusion that the operations are not "hostilities" under the WPR.

Spiro found a middle ground, focusing less on the constitutionality of the pull-out provision and ultimately on the political and pragmatics of it:

Does this mean that section 5(b) is unconstitutional? That question may better be left to the court of history. Although presidents may not declare the Act unconstitution, from the Reagan Administration onward they have been careful not to concede the point. They have good cause to avoid the distraction of constitutional confrontation where a more minimalist argument will serve the same end.

On the other hand, Congress has no real need of the provision, lack of respect for which reflects poorly on the institution. Congress has ample tools with which to control presidential deployments of U.S. armed forces. . . . In coming years we may well witness a trend towards greater congressional participation in decisions relating to the use of U.S. armed forces.

In any event, devising a position of the Congress with respect to the operatiosn in Libya should be the primary task at hand. Disputes relating to the War Powers Resolution are likely to distract from that undertaking. I believe we would be having the same sort of discussion today even if the War Powers Resolution had not been enacted. The persistent cloud over the Act underlines the perception of some that Congress is ill-equipped in this realm. Congress would be better served by focusing on other institutional tools for participating in the full spectrum of use-of-force decisions.

Spiro Testimony, at 5.

For some, even many, however, the issue now is less whether the administration has a plausible claim that U.S. operations in Libya are not WPR "hostilities," and more why the President seemed to cherry-pick advice from his legal advisors. There's nothing unconstitutional about this kind of cherry-picking, but it smacks of the kind of decision-making that led to opinions in the Bush administration relating to, among other things, torture.

In addition to its expanded coverage--up from 35 countries in the 2010 Index--the 2011 Index includes some methodological changes and new data on transition of power, civil conflict, freedom of assembly and association, due process in administrative proceedings, and criminal recidivism. The four "universal principles," however, remain (predictably) unchanged from the 2010 Index:

The government and its officials and agents are accountable under the law.

The laws are clear, publicized, stable, and fair, and protect fundamental rights, including the security of persons and property.

The process by which the laws are enacted, administered and enforced is accessible, fair, and efficient.

Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.

Here's the Index's summary on the United States:

The United States obtains high marks in most dimensions of the rule of law. The country stands out for its well-functioning system of checks and balances and for its good results in guaranteeing civil liberties among its people including the rights of association, opinion and expression, religion, and petition. The civil justice system is independent and free of undue influence, but it remains inaccessible to disadvantaged groups (ranking 21st). Legal assistance is expensive or unavailable (ranking 52nd), and the gap between rich and poor individuals in terms of both actual use of and satisfaction with the civil court system remains significant. In addition, there is a general perception that ethnic minorities and foreigners receive unequal treatment from the police and the courts.

The Kenyan Judicial Service Commission this week selected five candidates to serve on the country's first Supreme Court. But the Federation of Women Lawyers and five other women lobby groups moved to halt the appointments because they violate the new Constitution's requirements for gender balance.

Kenyans approved their new Constitution last August in order to rein in historically expansive and abusive presidential authority through separation of powers, checks and balances, and other progressive rights-protecting features. Chapter 10 sets up an independent judiciary, including, under Article 163, a Supreme Court comprised of seven members (a Chief Justice, a Deputy Chief Justice, and five other judges) with exclusive original jurisdiction to hear disputes related to presidential elections and mandatory appellate jurisdiction over all cases involving the interpretation of application of the Constitution. (The Court also has discretionary appellate jurisdiction over other matters.)

The President appointed Dr. Willy Mutunga as Chief Justice and Ms. Nancy Baraza as Deputy Chief Justice. The JSC selected the five other judges--four men and one woman.

The Federation of Women Lawyers filed an application to halt the JSC-approved appointments, however, because they violate the Constitution. In particular, the Federation argues that the appointments violate Article 27(8), which requires the State to "take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender." The Federation also argues that the appointments violate Article 172(2)(b), which says that the JSC "shall be guided by . . . the promotion of gender equality."

A bipartisan group of House lawmakers led by Rep. Dennis Kucinich (D., Ohio) today sued the President and Secretary of Defense to stop U.S. military operations in Libya. The complaint in Kucinich v. Obama alleges that the President exceeded his authority under Article II, violated congressional power to declare war under Article I, violated the War Powers Resolution, and misused federal funds in violation of Articles I and II. The Plaintiffs seek declaratory relief that the President's actions are unconstitutional and injunctive relief to stop the U.S. military operations in Libya. Here's the press release. We previously posted on constitutional issues involved in U.S. military efforts in Libya here, here, and here.

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In related news, the White House today released a Letter from the President on the War Powers Resolution. The Letter, which updates Congress on a variety of different engagements, sets out the administration's position on the Libyan campaign--that this isn't a "war." Check it out:

As I reported on March 21, and at my direction, consistent with a request from the Arab League, and as authorized by the United Nations Security Council . . . U.S. military forces commenced operations on March 29, 2011, to prevent a humanitarian catastrophe and address the threat posed to international peace and security by the crisis in Libya and to protect the people of Libya from the Qadhafi regime. . . . By April 4 . . . the United States had transferred responsibility for the military operations in Libya to NATO and the U.S. involvement has assumed a supporting role in the coalition's efforts. . . . With the exception of operations to rescue the crew of a U.S. aircraft on March 21, 2011, the United States has deployed no ground forces to Libya.

Here's what the complaint says about some of these points, including the U.N. Security Council resolutions, which were a large part of the OLC's analysis on why the President had authority to wage the Libyan campaign:

74. A U.S. resolution does not abrogate or change the obligation of President Obama to obtain a declaration of war under Article I, Section 8, Clause 11 of the Constitution.

75. The Obama administration has denied that the Libyan operations aare at a war and, on March 24, 2011, White House Spokesman Jay Carney stated that the administration had defined these combat operations as "a time-limited, scope-limits military action."

76. "Time-limited, scope-limited" military actions are not referenced in the U.S. Constitution or the constitutional convention debates.

And, as Dean Brooks notes, the piece she has selected, Judge Anne Derrick’s In the Matter of a Fatality Inquiry Regarding the Death of Howard Hyde, Report Pursuant to the Fatality Investigations Act (2010), "pushes at the boundaries of what most of us would consider scholarship." However, Brooks contends that it is "the most interesting piece of scholarly work motivated by equality considerations that has crossed my desk in the last several months." Indeed, Brooks argues that "the report’s 80 recommendations are essential ground for equality scholars with an interest in policy-relevant scholarship."

With this selection, Brooks addresses aspects of equality that tend to be side-lined and in a form that is often neglected. It's a fitting start for the new section on Equality from Jotwell: The Journal on Things We Like (Lots). Brooks' co-editor of the Equality Section is Professor Sonia Lawrence, Director, Institute for Feminist Legal Studies York University – Osgoode Hall Law School. They've assembled a crew of contributing editors (and I feel humbled to be included) from around the globe, so the work highlighted is sure to transcend the usual "equal protection doctrine revisionings" that have become ubiquitous in US scholarship. The Equality "jots" will run monthly, but in the interim Jotwell has a great sections on Constitutional Law, Jurisprudence, and other areas of law.

Turkish Prime Minister Recep Tayyip Erdogan's ruling Justice and Development party (AKP) won nearly 50% of votes in Sunday's election, giving the party 325 seats in Parliament. The Guardian reports here.

One of the first orders of business will be to rewrite the Constitution.

But the AKP's take in the election--less than the super-majority needed to pass amendments to the Constitution or to submit them to referendum--means that the party alone cannot muscle through changes to the Constitution. (See Article 175 for amendment procedures and requirements.)

Turkey's Constitution is in need of revision. Its current Constitution, written in 1982 (but amended here and there since), has not kept pace with the country's social, economic, and political developments. A referendum last fall on amendments to 26 articles of the Constitution, which passed with 58% of the vote, was seen as a signal that the country is ready for comprehensive constitutional change.

Since President Obama blew by the 60-day restriction in the War Powers Resolution, 50 U.S.C. Sec. 1544(b), on unauthorized troop commitments in Libya on Friday, a spate of legislation has appeared authorizing, de-authorizing, or otherwise expressing the sense of Congress on Libyan operations.

The WPR states:

Within sixty calendar days after a report is submitted or is required to be submitted [on a Presidential commitment of U.S. troops], whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. . . .

Notwithstanding subsection (b) of this section [quoted above], at any time that United States Armed Forces are engaging in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.

Senator Rand Paul took a different tack in his Senate Joint Resolution 13, "declaring that a state of war exists between the Government of Libya and the Government and people of the United States, and making provisions to prosecute the same." And Senator John McCain introduced Senate Resolution 194, "expressing the sense of the Senate on United States military operations in Libya."

Earlier bills include Senator John Cornyn's Senate Resolution 148, calling on the President to report to Congress on matters related to the Libyan operation and calling on the President to seek congressional authorization for the use of force in Libya. Senate Resolution 146 expresses the sense of the Senate that it's not in the vital interest of the U.S. to intervene in Libya and urging others to step up. Other resolutions call on the administration to report to Congress on the Libyan operation and to comply with the WPR.

We posted on the OLC memo concluding that the President had authority to commit U.S. troops to Libya here. Here's what the OLC had to say about the relevant sections of the WPR:

Indeed, Congress itself has implicitly recognized this presidential authority. The [WPR], a statute Congress described as intended "to fulfill the intent of the framers of the Constitution of the United States," provides that, in the absence of a declaration of war, the President must report to Congress within 48 hours of taking certain actions, including introductions of U.S. forces "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances." The Resolution further provides that the President generally must terminate such use of force within 60 days (or 90 days for military necessity) unless Congress extends this deadline, declares war, or "enact[s] a specific authorization." As this Office has explained, although the WPR does not itself provide affirmative statutory authority for military operations, the Resolution's "structure . . . recognizes and presupposes the existence of unilateral presidential authority to deploy armed forces" into hostilities or circumstances presenting an imminent risk of hostilities. That structure--requiring a report within 48 hours after the start of hostilities and their termination within 60 days after that--"makes sense only if the President may introduce troops into hostilities or potential hostilities without prior authorization by the Congress.

Memo at 8 (citations omitted).

The memo thus recognizes the limits in the WPR as valid authority for the President. If so, the legislation introduced yesterday seems to say, the President must also recognize these limits in the WPR as restrictions.

President Obama this week expanded his recent executive order blocking the property of certain Syrian officials responsible for human rights abuses in the recent crackdowns against protestors and political activists. The new EO expands the list of persons whose property is and may be blocked.

The new EO, issued Wednesday, blocks the property of President Al-Assad, VP Al-Shara, PM Safar, the Interior and Defense Ministers, the Head of Syrian Military Intelligence, and the Director of Political Security Directorate. It also authorizes the Treasury Secretary, in consultation with the Secretary of State, to block property of others determined to have assisted in the crackdowns, including any "senior official of the Government of Syria." (The earlier EO blocked property of three lower level officials and two groups, the Syrian General Intelligence Directorate and the Islamic Revolutionary Guard Corps, and included an authorization to block property of a narrower group.)

The re-election this week in Canada of PM Harper and a decisive victory for his Conservative party was presumably not cause for celebration for Craig Scott, Professor of Law at Osgoode Hall. Scott's article, Will Canada Be an Open Democracy after May 2?, available on ssrn, posits there is a "threat to open democracy in Canada posed by the nearly pathological extent to which secrecy and manipulation of access to the truth has taken over Ottawa and Parliamentary affairs in Canada" under Harper.

Scott's specific concern should be of great interest to US constitutional scholars. Scott questions the Canadian government's "policy of transferring detainees in Afghanistan to Afghan intelligence services (notably, the National Directorate of Security or NDS) in full knowledge of the torture practices of those agencies and thus of the risks faced by each transferred detainee."

Owen Fiss (Yale) argues in the Boston Review that President Obama's pickle--caught between his former policy to close Guantanamo and his desire to try KSM and others in Article III courts, on the one hand, and the congressional ban on using appropriated funds to transfer Guantanamo detainees to the U.S., on the other--is of his own creation.

Fiss argues that President Obama's May 2009 speech at the National Archives (in which he announced that some detainees would get Article III trials while others would get military commissions while yet others would get indefinite detention) and his support for the Military Commissions Act of 2009 (which revised military commission procedures, but still fell short of Article III trials) lined up such that "the Guantanamo closure ceased to be of much importance." According to Fiss, President Obama's resistance to extending habeas to detainees at Bagram in the Al Maqaleh litigation only underscores this conclusion.

With a Guantanamo closing all but off the table (by the President's own actions), congressional restriction on the use of appropriated funds to transfer Guantanamo detainees to the U.S. was only the final straw. After the ban,

[t]he options that then remained for Obama were: (a) the continued imprisonment of Khalid Sheikh Mohammed without trial (he had already been incarcerated for more than seven years) or (b) trial before a military commission. Given the alternative options, Obama chose the one that is, in my judgment, the less constitutionally offensive. Sympathy for Obama's choice, however, should not obscure his complicity in constructing the alternatives he confronted.

In truth, there was (is) a third option, the one that the administration adopted: Sign the legislation banning the use of funds for transfer, but issue a signing statement that claims that such a ban unconstitutionally encroaches on a core executive function, and move to overturn it.

This third way is emblamatic of President Obama's approach to so many of these issues--detention, military trial, habeas, state secrets, even signing statements: He's made some constitutionally significant changes to Bush administration positions around the edges on each of these, but in the end the refined positions only result in more-or-less the same policies.

But with regard to KSM and some others, President Obama once seemed truly committed to moving forward in Article III courts. And with regard to Guantanamo, he once seemed truly committed to closing. Sure, his positions and policies may have contributed to a larger political environment in which closing Guantanamo "ceased to be of much importance." (And maybe he could have (should have) spent even more political capital in seeking closure and Article III trials.)

But in the end the congressional ban on transfers was a congressional ban. (And the most recent version came in the eleventh-hour spending bill negotiated between the White House and Congress to avoid a shut-down, presenting President Obama with no practical option but to sign the measure.) The ban entirely foreclosed even any marginal change that President Obama might have made (e.g., an Article III trial for KSM) using his third way.